Merit Decision: A Trial Court Does Not Retain Jurisdiction to Hold a Sex Offender Registration Hearing After the Sentencing Entry has been Journalized. State v. Raber.

On December 5, 2012, the Supreme Court announced a merit decision in State v. Raber, 2012-Ohio-5636 The case was argued August 21, 2012. In a 6-1 decision written by Justice O’Donnell, the Court held that a trial court had no jurisdiction to classify Raber as a sex offender fourteen months after entering its judgment of conviction, from which no appeal had been taken. Justice Lanzinger concurred in judgment only. Chief Justice O’Connor dissented.

Case Background

18 year old Kyle Raber and his then 18 year old former girlfriend had consensual intercourse in her bedroom. Raber wanted anal sex; his girlfriend did not, but he proceeded anyway. As a result, Raber was indicted on one count of sexual battery, which is a third degree felony. On October 28, 2008, Raber pled guilty to sexual imposition, a third-degree misdemeanor.

The Sentencing Hearing

The sentencing hearing was held November 26, 2008. The parties disagreed about whether the charge to which Raber had pled guilty required Raber to register as a sex offender. The only information on the issue of consent at the sentencing hearing was the hearsay statement of the ex-girlfriend.

The trial judge requested briefs on the registration issue, but none were filed. On December 1, 2008, the court entered judgment. The sentencing entry contained jail time, a fine, and community control, but was silent on the issue of registration.

The Post-Sentencing Hearing

More than ten months later, the trial judge sua sponte set a hearing for November 18, 2009, then for no reason that is of record transferred this case to a different judge. The new judge held an evidentiary hearing March 2, 2010, at which the victim testified she had not consented to anal intercourse. The judge classified Raber as a Tier I sex offender subject to registration, and journalized its entry in this regard on April 14, 2010.

Raber argued that once the sentencing entry in this case, which was silent on the issue of registration, was journalized in December of 2008, and the state failed to appeal it, the matter was final, and the court had no jurisdiction to modify his conviction and sentence. He argued that classifying him as a Tier I sex offender after that deprived him of due process by re-opening a final judgment and violated the Constitutional prohibition against double jeopardy by imposing additional punishment at a subsequent proceeding.

State’s position

The state argued that the delay in the sex offender classification issue was with Raber’s agreement, that lack of consent is inherent in a guilty plea to the offense of sexual imposition, and that this was not a matter of subject matter jurisdiction, but rather a simple clerical error in an entry that the trial court had the power to correct.

“Following the enactment of S.B. 10, all doubt has been removed:R.C. Chapter 2950 is punitive.”

Lack of Registration Requirement in Judgment of Conviction

Pursuant to R.C. 2950.01(B)(2), a person who commits a sexually oriented offense is not a sex offender if the offense involves consensual sexual conduct with a person over eighteen and other conditions not relevant to this case. If the offender is not a sex offender, there is no duty to register. In this regard, the Court found that at the November 26, 2008 sentencing hearing, the state failed to prove lack of consent to the sexual activity and the trial court’s judgment of conviction makes no mention of any registration requirement. So the law presumes that’s what the court meant. At oral argument, Chief Justice O’Connor had asked why the Court shouldn’t assume from a silent entry that registration was not required.

Reconsideration of Final Judgments

The Court has previously held that a trial court lacks the authority to reconsider its own valid judgment in a criminal case. Trial courts retain continuing jurisdiction to correct a void sentence or a clerical error in judgment. Neither applies in this case. The majority flat out rejected the state’s argument that the decision not to classify Raber as a Tier I sex offender was a clerical error. At oral argument Justice Stratton had retorted that the failure to include an agreement that registration would be deferred didn’t sound like a clerical error to her.

Double Jeopardy

It is now settled law that sex offender registration requirements under Ohio’s version of the Adam Walsh Act are punitive (Justice O’Donnell has never agreed with this, and wrote a long dissent in State v.Williams, but as majority opinion author in this case kept his feelings to himself.) While a defendant has no reasonable expectation of finality in a void or unlawful sentence, the sentence in this case was neither. So, Raber had a legitimate expectation of finality in the December 1, 2008 judgment of conviction. The double jeopardy clause prohibited the trial court from re-opening the case, holding a hearing to determine whether the activity was consensual, or classifying Raber as a sex offender subject to Tier I registration.

Conclusion

The judgment of the court of appeals was reversed.

Chief Justice O’Connor’s Dissent

The Chief would find that since the sex offense that Raber was convicted of was nonconsensual, there was no reason to hold an evidentiary hearing on the issue of consent. The imposition of sex-offender registration was required by law in this case, and was ultimately properly imposed. She would affirm the court of appeals decision.

2. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against the imposition of multiple criminal punishments for the same offense in successive proceedings. (Hudson v.United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and United States v. Husein, 478 F.3d 318 (6th Cir.2007), followed.)

Concluding Observations

It seemed clear at oral argument that a majority of the justices weren’t buying the state’s clerical error argument. It also looked like a sure reversal, although not a unanimous one. But at oral argument Justices Cupp and O’Donnell seemed more favorable to the prosecution, and Chief Justice O’Connor less so—those positions shifted.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.